Bills may result in imprisonment for failure to comply with mandatory vaccination regulations.
Johannesburg - Sunday marks the third anniversary of the Declaration of the State of National Disaster in South Africa and the subsequent Covid-19 lockdown.
While South Africans continue to have a choice about vaccination, Brazilians could face jail time for refusing to be vaccinated.
One could be forgiven for thinking that conversations around mandatory vaccine policies were a thing of the past. But Brazil is considering several bills that may result in imprisonment for failure to comply with the country's mandatory vaccination regulations.
South Africa’s Health Department spokesperson Foster Mohale said this is unlikely to ever happen in SA.
“No at all. We have been clear on this and our Constitution would not allow this,” said Mohale.
The National Library of Medicine and the National Center for Biotechnology Information in Brazil, said legislation already existed for the government to make Covid-19 vaccination compulsory.
Experts at Cliffe Dekker Hofmeyr’s (CDH) Employment Law practice said if passed into law, Brazilians may be imprisoned for refusing to vaccinate, and for spreading misinformation about Covid-19 vaccinations. The bills are in the early stages and there was no indication of jail terms as yet.
Mandatory vaccination has been provided for in Brazilian law which made smallpox immunisation mandatory at the beginning of the 20th century which led to the vaccine riots in 1904 in Rio de Janeiro. Vaccination is currently mandatory in Brazil for specific groups only, for example children under the age of 12.
If enacted, the CDH believes, “it will be a rather radical approach” adding that it would be interesting to see whether any other countries follow suit.
“What we've seen is a series of bills that are going through Congress in Brazil that seek to classify the refusal to submit oneself to Covid-19 mandatory vaccinations in the public health space as a crime punishable with imprisonment. The proposed bills also propose the criminalisation of disseminating information that is false or seeks to discourage people from getting vaccinated,” said the CDH
Senior Associate at the CDH, Tamsanqa Mali, said South Africa achieved quite a balancing act at the height of the pandemic and the government ultimately decided that vaccination was not mandatory.
“At a labour level, employers were allowed to create vaccination policies and workers could challenge these. They had to compromise. A number of cases went to the CCMA and initially it was ruled that workers could be dismissed but this was subsequently changed,” he said.
Mali said locally, cases around mandatory vaccinations in the workplace are now being tested at the CCMA and the Labour Court, and it would be telling to see where it goes in terms of employers and their vaccination policies, especially if these changes are implemented in other emerging markets such as Brazil.
Brazil has a history of successful immunisation policies, having served as a benchmark for other countries in the past. The universal access to vaccines from the 1970s onwards led to the eradication of polio and to the reduction in cases of measles, whooping cough, tetanus, and tuberculosis.
However, the drop in vaccine coverage in recent years, coupled with declarations by former Brazilian president, Jair Bolsonaro promoting vaccine hesitancy, have raised concerns that voluntary vaccine uptake for Covid-19 may be low. But Mali is of the view that the movements in Brazil may have more to do with curbing the spread of misinformation.
“Maybe they anticipate a spike in cases and they’re trying to avoid that. Right now it isn’t because Covid is a problem anywhere, but there is a lot of fake news. I do think that these moves are based on a genuine belief that misinformation could be harmful,” Mali added.
Mandatory vaccination exists in several countries, although it varies widely in terms of scope and reach, the types and intensity of sanctions that could be imposed.
Brazilian legal experts said if mandatory vaccination passed the suitability test, and if there was evidence that it promoted the protection of public health, the next test was that of necessity.
The World Health Organisation, on its website, said globally, more than 3.7 million new cases and more than 26 000 deaths were reported in the last 28 days (20 February to 19 March 2023). This represents a decrease of 31% and 46%, respectively, compared to the previous 28 days (23 January to 19 February 2023); however, there are significant regional differences including increases in some regions. As of 19 March 2023, more than 760 million confirmed cases and more than 6.8 million deaths were reported globally.